If there were a home health nurse to care for this patient,
presumably there would be no reason to breach confidentiality since the
expectation would be that she would follow universal precautions. Of
course, universal precautions could be explained to the patient's
sister. In an ideal world this would seem to be a satisfactory response
that protects both Carlos's rights and Consuela's welfare.
But the world is not ideal.

We know that health professionals, who surely ought to have the
knowledge that would motivate them to take universal precautions
seriously, often fail to take just such precautions. It is easy to
imagine that Consuela could be equally casual or careless, especially
when she had not been specifically warned that her brother was
HIV-infected. Given this possibility, does the physician have a duty to
warn that would justify breaching confidentiality? I shall argue that
he may not breach confidentiality but he must be reasonably attentive to
Consuela's safety. Ordinarily the conditions that must be met to
invoke a duty to warn are: (1) an imminent threat of serious and
irreversible harm, (2) no alternative to averting that threat other than
this breach of confidentiality, and (3) proportionality between the harm
averted by this breach of confidentiality and the harm associated with
such a breach. In my judgment, none of these conditions are
satisfactorily met.

No one doubts that becoming HIV-infected represents a serious and
irreversible harm. But, in reality, is that threat imminent enough to
justify breaching confidentiality? If we were talking about two
individuals who were going to have sexual intercourse on repeated
occasions, then the imminence condition would likely be met. But the
patient's sister will be caring for his wound for only a week or
two, and wound care does not by itself involve any exchange of body
fluids. If we had two-hundred and forty surgeons operating on
two-hundred and forty HIV-infected patients, and if each of those
surgeons nicked himself while doing surgery, then the likelihood is that
only one of them would become HIV-infected. Using this as a reference
point, the likelihood of this young woman seroconverting if her intact
skin comes into contact with the blood of this patient is very remote at
best.

Moreover in this instance there are alternatives. A frank and
serious discussion with Consuela about the need for universal
precautions, plus monitored, thorough training in correct wound care,
fulfills what I would regard as a reasonable duty to warn in these cirto
be given to Carlos so that he can monitor her performance. He can be
reminded that this is a small price for protecting his confidentiality
as well as his sister's health. It might also be necessary to
provide gloves and other such equipment required to observe universal
precautions.

We can imagine easily enough that there might be a lapse in
conscientiousness on Consuela's part, that she might come into
contact with his blood. But even if this were to happen, the likelihood
of her seroconverting is remote at best. This is where proportionality
between the harm averted by the breach and the harm associated with it
comes in. For if confidentiality were breached and she were informed of
his HIV status, this would likely have very serious consequences for
Carlos. As a layperson with no professional duty to preserve
confidentiality herself, Consuela might inform other family members,
which could lead to his being ostracized from the family. And even if
she kept the information confidential, she might be too afraid to
provide the care for Carlos, who might then end up with no one to care
for him.

The right of confidentiality is a right that can be freely waived.
The physician could engage Carlos in a frank moral discussion aimed at
persuading hm that the reasonable and decent thing to do is to inform
his sister of his HIV status. Perhaps the physician offers assurances
that she would be able to keep that information in strict confidence.
The patient agrees. Then what happens? It is easy to imagine that
Consuela balks at caring for her brother, for fear of infection.

Medicaid would still refuse to pay for home nursing care because a
caregiver would still be in the home, albeit a terrified caregiver.
Consuela's response may not be rational, but it is certainly
possible. If she were to react in this way it would be an easy
"out" to say that it was Carlos who freely agreed to the
release of the confidential information so now he'll just have to
live with those consequences. But the matter is really more complex
than that. At the very least the physician would have to apprise Carlos
of the fact that his sister might divulge his HIV status to some number
of other in dividuals. But if the physician impresses this possibility
on Carlos vividly enough, Carlos might be even more reluctant to
self-disclose his HIV status to Consuela. In that case the physician is
morally obligated to respect that confidentiality.

Leonard M. Fleck is associate professor, Center for Ethics and
Humanities in the Life Sciences, Michigan State University, East
Lansing, Mich.

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